Standing Committee B

[Mr. Roger Gale in the Chair]

Sexual Offences Bill [Lords]

Clause 17 - Meeting a child following sexual grooming etc.

Amendment proposed [this day]: No. 40, in 
clause 17, page 7, line 21, leave out '7' and insert '14'.—[Mr. Grieve.]
 Question again proposed, That the amendment be made.

Vera Baird: The amendment would increase the maximum sentence for the offence to 14 years. I propose a compromise of 10 years on the basis that we should keep the harsher sentencing for the full offence, rather than for activity that is merely preparatory to committing an offence. Given that the traditional and right approach is to give a sentencing discount for an attempt as opposed to the full offence, I suggest that something that is merely preparatory should also be subject to a discount.

Paul Beresford: The drive behind the clause, which is the main proposal from sub-group A, was preventive and proactive. An example cited by the police to the Committee was that of Luke Sadowski. Because the Bill is not on the statute book, that man was charged with attempted indecent assault, attempting to incite another to procure a child—a girl under 21—for sex, and possession of a firearm. It was his first offence and the police were fortunate that he pleaded guilty, as it would have been hard to make the offence stick. When the police went to his accommodation, they found firearms, handcuffs, knives and other paraphernalia, the implication being that ultimately he would kill a child. It was an offence in the mind, but if we follow that mind, 10 years would not be enough. Fourteen years must be available to the court, given that he might come out of prison in much less time than that.

Vera Baird: The hon. Gentleman takes such issues seriously, as do we all, and gives the worst imaginable case as an example. There is a good reason to keep the harsher sentences only for the fullest offences. It will then be clear to those who even contemplate committing such offences that they will be punished severely if they do so. We must keep the position secure and allow some discount in view of the fact that no one has been harmed. The only logic in increasing the sentence to 14 years would be if the full offences were subject to higher punishments.
 At a time when the public are dissatisfied not so much with the gravity of sentencing, but the inconsistency of sentencing for the same offences, the position must be made clear to judges by setting the limits which sentences are to be more severe. As a rule, an attempt is sentenced less seriously than the full offence, and we are not discussing even an attempt. I accept that such matters are not just in the person's head, because there has been an element of 
 communication prior to the attempt to meet; none the less, despite the real gravamen of what is in the person's mind, it is only in his mind at the time. I do not agree with my hon. Friend the Member for Wirral, West (Stephen Hesford) that we can equate clause 17 with clause 15 and say that the offences therein merit a similar sentence. Clause 15 contains elements of a conspiracy with other people to set up a group to behave in such a way, which is more grave. 
 The mischief that the amendment claims to cure could be dealt with if the Government were willing to accept a maximum sentence of 10 years. The spectre of the low sentences that were quoted by Conservative Members this morning would be lifted.

Sandra Gidley: I approach the subject with an open mind. While listening to the debate, it struck me that we are approaching a wide range of intentions, and in such cases, there will potentially be a wide range of circumstantial evidence to back up the police. In the most severe cases, I am fairly convinced that other provisions of the Bill would be contravened and that that would lead to a greater sentence. We have to take account of the greater as well as the lesser offences. The hon. Member for Mole Valley (Sir Paul Beresford) quoted one such example. Seven years is probably a reasonable sentence for the vast majority of offences under the clause but I am tempted to consider increasing the maximum to 14 years—or to come to a compromise of 10 years—to give judges more discretion.
 The clause would be an ideal candidate for the Sentencing Guidelines Council; will the Under-Secretary consider the matter and come up with relevant guidelines?

Paul Goggins: I am very grateful for the support from both sides of the Committee in relation to the offence that we are creating; it is an important, groundbreaking offence, which recognises a modern problem.
 I have listened carefully to the debate on the amendment. My hon. Friend the Member for Wirral, West, who is not with us at the moment, said that I had failed to respond to his speech on Second Reading. I humbly apologise for that; in the 15 minutes available to me, it was not possible to respond to every argument. However, he has had the opportunity to put his argument today. 
 We have talked today about sentencing issues that apply more widely than simply to the offence in question. The hon. Member for Beaconsfield (Mr. Grieve) said several times that if somebody is sentenced to seven years, they actually serve three and a half years and that if they are sentenced to 10 years, they do five years. That is a wider issue that does not apply simply to the offence in question. None the less, I recognise that that is a matter of debate. 
 The important points as far as I was concerned were made by the hon. Member for Mole Valley and my hon. and learned Friend the Member for Redcar (Vera Baird), who emphasised the preparatory nature of the offence. That goes to the heart of what the offence is about. We are trying to prevent a serious sexual 
 assault on a child; the powers that we have at the moment do not allow us to intervene as we would like to prevent that most serious event from happening. 
 I should tell the hon. Member for Mole Valley that Liberty is not a member of the taskforce, though I understand that a senior figure in Liberty has attended meetings; so although not part of the taskforce it has made a contribution. 
 Some time ago, the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) raised the issue of— 
Mrs. Annette L. Brooke (Mid-Dorset and North Poole) indicated dissent.

Paul Goggins: Perhaps it was the hon. Member for Romsey (Sandra Gidley) who raised the issue of intent and how sexual intent could be proved. It was the hon. Member for Romsey; I apologise. Clearly the prosecution and those conducting the investigation would look carefully at the circumstances in which the defendant was found. For example, if he were found going to the meeting with ropes, lubricants and paraphernalia that would indicate his intention to carry out sexual activity, that would be the kind of evidence sought.
 To return to the issue, raised by my hon. and learned Friend the Member for Redcar, about the law in relation to attempt, clearly more would need to be proved than merely preparatory activity. The evidence sought would be far more significant: it might involve the removal of a child's clothing, or something that was part of the process of assaulting the child. We are trying to prevent that sort of thing from happening by putting the offence much further up the line, in the area of preparation. As the hon. Member for Romsey said, if a serious sexual assault takes place, that can be dealt with in a number of other ways that are addressed in other clauses: heavy penalties can be paid, from 14 years to life imprisonment. 
 The Government have tried to find a penalty that both reflects the seriousness of the offence and is proportionate. We are trying to anticipate offences that are of a lower order than the carrying out of the most serious kinds of sexual assaults on children and to prevent them from happening. For the penalty, we arrived at a figure of seven years, but it is important to emphasise that the sex offender notification requirements will apply to anybody who is found guilty of such an offence, and as a result of that registration they will be eligible for sex offender treatment programmes—that relates to a point made by the hon. Member for Mole Valley. 
 We think that we have got the principles right, but I am happy to reflect further on whether we have got the penalty right, so that we arrive at a final figure that reflects the principles and the need for proportionality as well as the fact that we regard this as a very serious offence.

Dominic Grieve: I am pleased to have heard the Minister's comments. I tabled the amendment in order to argue that the penalty might be insufficient in certain cases. I suspect that they would
 be a very limited number of cases, but they would be the sorts of cases that would excite a great deal of press and public comment.
 I am glad that the Minister is undertaking to think again. A figure of 10 years has been suggested, which might merit consideration. It was never my intention to press the amendment to a Division. It would probably be sensible for all Committee members to go away and reflect on this matter. We can come back to it on Report—or the Minister might tell us his views before then.

Vera Baird: I was persuaded to suggest 10 years largely because that would introduce some consistency as clauses 62, 63 and 64, which address other preparatory offences, have that penalty.

Dominic Grieve: I had appreciated that that figure was not plucked out of thin air: that might well provide an element of comparability that could be followed.
 Although in 95 per cent. of cases the penalty of seven years will probably be sufficient, there will be some cases in which the police intervene to prevent what clearly would have been a dreadful crime and the person involved already has a serious track record of committing the complete offence. In those circumstances, the public are going to say that there is an opportunity to protect them but that the sentence does not match the gravity of the threat that is posed by the individual. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Paul Beresford: This Bill has been interesting because the way in which the Committee has acted is unique. Outside the Committee, the hon. Member for Walthamstow (Mr. Gerrard) said to me that he had been struck by that uniqueness. It relates to the subject under discussion.
 The Committee has spent quite a lot of time talking about what goes on behind the bike sheds and so forth, which has been of interest to some newspapers. For me however, the unique thing is this clause, which came out of many meetings of many hours by members of sub-group A, which the Government set up specifically to investigate the internet. Sub-group A looked specifically at legal changes and came up with this clause but, interestingly, it moved on from that to look at broader issues—the protection of children and grooming in a context far wider than just the internet. 
 The clause is fascinating because people from America, Iceland, New Zealand, Canada and throughout the world are looking at it. There is much interest outside this country—much more than the media realise. The Committee was lucky to have some extremely able people sitting on it. Although those were mainly from child protection groups, there were also people like Detective Chief Inspector McLachlan from the police paedophile unit, and one of his successors, and academics. As the Under-Secretary said, one senior member of Liberty also sat on the Committee. Its membership was quite broad. 
 In a way, the Committee has come up with a more or less black and white Bill. I say in a way, because we must recognise that many of the people at whom the Bill is aimed are exceptionally clever. The Committee learned about some of those people, and they range from schoolteachers to computer experts and rocket scientists. 
 The clause was set up to be able to adapt, to a fair degree, to the changing times. We have dealt with the internet satisfactorily and with pictures and drawings, and so on. However, since the sub-group has been sitting there have been changes in technology, such as webcams, for example, which have had an effect on the activity of paedophiles and the link to children. We moved on to discuss the new phones with associated cameras, and how paedophiles are using those. 
 We are now discussing something about which I am deeply concerned and which I am not sure the clause will help much. The new phones—particularly pay-as-you-go phones—are becoming a real danger. On buying a mobile telephone nowadays, one gives a name, address, credit card number and so on, which is provided because the firm behind the supply of the phone and network wishes to be paid. If one buys a pay-as-you-go phone, that does not happen. That leads to a complication, because the paedophiles will give a child a phone and use it as part of their grooming. Their next step is to return to The Carphone Warehouse, or another organisation, pay £29.50 and explain that they want to track their daughter, for whom they are buying the phone. They, however, give no name, address or other details at all. 
 On receiving the £29.50, The Carphone Warehouse will check up by texting the daughter, because as far as it is concerned she has the phone. Of course, the paedophile has the phone, and he will text back the word ''yes'' on behalf of his imaginary daughter. We have moved on to a modern technology, through which the grooming paedophile can phone The Carphone Warehouse and locate the child. I think that that is quite extraordinary. 
 I do not think that we can quite cover this, but I want to follow what the Minister said at the beginning and offer support and thanks to the sub-group for its efforts. Many of us went away to work on the subject. I worked with an American researcher and one from New Zealand, looking at the law in the rest of the world. There is nothing anywhere that is comparable to this clause. 
 In one of the interviews on the ''Today'' programme—although not with the Under-Secretary—the Committee's efforts and the clause were belittled on the grounds that the internet is international and the clause would have an effect only on our small patch. We have 58 to 60 million people in this country, so there are, presumably, some 230,000 potentially active paedophiles. The clause is a darn good start. The interest of the rest of the world, particularly the western world, in the clause is such that if it works—I hope that it does for the children's sake—the rest of the world will follow in our footsteps. That is a nice way to be—with the British 
 Government, the British Parliament and this Committee protecting children through this one, little, unique clause.

Sandra Gidley: I welcome the clause. It is an excellent attempt to get to grips with what must be acknowledged as a real problem. However, I hope that the Minister does not mind if I ask a series of questions.
 Last night I was considering the clause's ramifications, both internationally and internally. I started from the premise that both A and B are based in the UK; that is clearly covered by the Bill. I then considered the case of A living abroad and travelling to the UK to meet B. I assumed that that was covered, because some of the travel would have taken place in the UK, so UK law would apply. I would be grateful if the Minister confirmed that. What measures do we have at our disposal to liaise with police in other countries to facilitate such processes? 
 I then starting thinking about the Shevaun Pennington case, in which A, who lived abroad, and B, who lived in the UK, met in this country and went to a third country. I assumed that that would also be covered for the reasons that I just mentioned—part of the travel took place in the UK. I am a parent of teenagers, and know the number of sleepovers that are alleged to have taken place that, on closer inspection, did not. It occurred to me that A might live abroad and B might go on a school trip abroad, and the meeting might take place outside the UK. I was not sure whether the clause would capture that situation and, if not, whether there was something that we could do about it. 
 Finally, it occurred to me that A could sit quite happily in this country talking to children in other parts of the world, and I was not 100 per cent. sure how those children abroad would be protected by the clause, whether we would do anything to intervene and how we would liaise. Any light that the Minister can shed on that would be useful.

Paul Beresford: The hon. Lady was at the teach-in, where the Metropolitan police discussed the American Marine. When the American Marine case came up, all the people on sub-group A and its legal advisers considered it very carefully. Two points arose: first, the sub-group thought that the clause applied, as the Marine was someone from outside coming in to collect the young lady and take her away. Secondly, the co-operation on this crime across the world, involving Interpol and various forces, was remarkably close and very effective.
 In the case of Luke Sadowski, whose name I keep mispronouncing, if there had been a not guilty plea, the main people involved in the prosecution would have been Americans, and the case would have involved American law enforcement. We are working together very closely, and the clause will help us to stay ahead. I think that the hon. Lady will find that her fears are unfounded.

Sandra Gidley: I thank the hon. Gentleman for his intervention, and for shedding some light on the subject. I will also be interested in the Minister's clarification.
 I touched earlier on a point that did not involve the internet, and I do not intend to repeat my arguments. On another point, we have heard that much abuse of children is committed by children. The clause does nothing, on the face of it, to provide a defence or safeguard in a situation in which a 17-year-old is grooming someone younger. I am not clear on what would happen in such circumstances, because clause 17 cannot be used—we would almost have to wait for an offence to happen before we could act. I hope that the Minister will reassure me that that is not the case.

Paul Goggins: Most of my responses are to the hon. Member for Romsey, but first I join in the remarks that the hon. Member for Mole Valley made about the taskforce and the sub-group. He has been involved with them for far longer than I have, but like him I very much appreciate their contribution.
 In relation to the hon. Lady's question about the Sentencing Guidelines Council, which I was not able to answer, the council will consider producing sentencing guidelines for all the offences in the Bill, including the one that we are debating. I hope that that reassures her. 
 On the hon. Lady's four scenarios of A and B, which I more or less followed, the answer is yes to all of them. Communication can take place anywhere in the world and the meeting can take place anywhere in the world, but part of the travel to the meeting must take place in England or Wales. We must always consider what is within and outwith our jurisdiction. Given the scale of the internet and its capacity to communicate across the globe, we have struck a fair balance. 
 Question put and agreed to. 
 Clause 17 ordered to stand part of the Bill.

Clause 18 - Abuse of position of trust: sexual activity with a child

Question proposed, That the clause stand part of the Bill.

Vera Baird: I am puzzled by clause 18, which does a similar thing to clauses 19, 20 and 21. Clause 18(1)(e) provides that a person commits an offence if
''B is under 18 and A does not reasonably believe that B is 18 or over''.
 More or less the same phrase is contained in clauses 10 to 13: 
''B is under 16 and A does not reasonably believe that B is 16 or over''.
 However, in clauses 18 to 21, there is an extra bit. Clause 18(3) states: 
''Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.''
 I am puzzled as to the special circumstances that require for this group of clauses an extra provision that is not required for the earlier group. I think that 
 clause 18(3) embodies the usual position, whereby unless an issue is raised about whether a person reasonably believes someone to be over age, the Crown must prove all of it. However, perhaps the subsection is intended to alter the burden of proof.

Dominic Grieve: As we are raising this matter, now might be a good moment to bring up subsection (1)(e)(ii)—I have flagged it up later in an amendment.
 The second possibility under clause 18 is that ''B is under 13''. I have no objection to that, but it will effectively duplicate what already exists. Such action, irrespective of whether a person is in a position of trust, is already made a criminal offence. I wonder whether we are doing a good service to the criminal law by having the offence and identifying a person as under 13 when it is difficult to see what that adds to the other offences earlier in the Bill. Perhaps the Under-Secretary can enlighten us as to the Government's reasoning. Later in the Bill, there is another example, which I have sought to highlight by amending my deletion of part 2. It would be useful if the hon. Gentleman could help us.

Vera Baird: May I raise another point? The hon. Member for Beaconsfield is right that only under clause 18 and thereafter is the person in a position of trust vis-à-vis the youngster. However, the sentence seems to be substantially less, which puzzles me.

Paul Goggins: This is helping to keep me on my toes after lunch.
 In clause 18 and subsequent clauses, we are re-enacting in its entirety the existing abuse of trust offence, which came into force in January 2001, under the Sexual Offences (Amendment) Act 2000. It is clear that Committee members appreciate that it is important that we now consolidate that in this legislation. 
 On the belief about age question, I say to my hon. and learned Friend the Member for Redcar that that evidential burden is placed on the defendant here because adults in a position of trust should be expected to know the age of the child: anyone who is in a position of trust with regard to a child should know precisely how old that child is. We regard that as a fundamental responsibility. 
 I suspect that the hon. Member for Beaconsfield was making a slightly different point. He has promised that we will address it later, and I hope that I will be able to respond to it more fully then. 
 Question put and agreed to. 
 Clause 18 ordered to stand part of the Bill.

Roger Gale: Before we proceed, it is clear that at some point in its discussion of this collection of clauses, the Committee is likely to want to debate the overall issue of position of trust. I am fairly relaxed about that, but I would prefer to do so only once. I will leave that to the good will and intelligence of the Committee to sort out; its members can decide when they wish to instigate that debate, at which time I am sure that the Minister will be willing to respond to it. I do not want the Committee to become bogged down five times in what is basically the same debate.
 Clause 19 ordered to stand part of the Bill.

Clause 20 - Abuse of position of trust: sexual activity in the presence of a child

Dominic Grieve: I beg to move amendment No. 202, in
clause 20, page 9, line 10, leave out 
 'for the purpose of obtaining sexual gratification'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 204, in 
clause 34, page 17, line 33, leave out 
 'for the purpose of obtaining sexual gratification'.
 Amendment No. 205, in 
clause 38, page 19, line 26, leave out 
 'for the purpose of obtaining sexual gratification'.
 Amendment No. 206, in 
clause 42, page 21, line 36, leave out 
 'for the purpose of obtaining sexual gratification'.

Dominic Grieve: These amendments address the same point: although amendments Nos. 204, 205 and 206 relate to later clauses, they are worded in the same way as amendment No. 202, so it is correct that they have all been grouped together.
 I will illustrate the point by discussing clause 20. Amendment No. 202 would delete the words, 
''for the purpose of obtaining sexual gratification''.
 I wish to make it clear that I do not object to this clause in principle, but I invite the Committee to read it with those words deleted: 
''A person aged 18 or over (A) commits an offence if—
(a) he intentionally engages in an activity,
(b) the activity is sexual,
(c) . . . he engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,
(d) A is in a position of trust in relation to B,
(e) where subsection (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B''.
 It goes on, but I need not read any further. 
 My question is simple: what is the purpose of introducing the following words as a preface to subsection (1)(c): 
''for the purpose of gaining sexual gratification''?
 The activity already has to be sexual within the terms of clause 79, which we have considered, so what does that phrase add? A sexual activity would have to be very unusual to be performed not for the purpose of sexual gratification, although I am aware that permutations of human behaviour are almost endless. 
 That phrase requires something further to be proved that is not otherwise necessary. Why do we require that to be proved? There is an argument that the words, 
''for the purpose of gaining sexual gratification''
 duplicate the meaning of the words, 
''the activity is sexual''.
 That is why I want to delete the first of those phrases. If the Under-Secretary can provide me with a good reason why it should remain, I will withdraw the amendment. However, he may conclude that those words are unnecessary in this context—and that that is the case in the other clauses as well.

Paul Goggins: I shall try to respond briefly to the hon. Gentleman's challenge by giving him an example. A teacher sets out on a day trip with a number of the children at the school where he works, and this is an occasion when the spouses and partners of the staff are invited too—on the face of it, an enjoyable day out. The teacher's partner travels with the teacher and during the course of the day they kiss each other in a very sexual way: they have a passionate kiss in front of the 15-year-old children who are under the care of the teacher. The teacher knows that the children are watching, but he does not engage in the kiss to get sexual gratification from the fact that he knows that they are watching; it is a sexual kiss with his partner that is part of their relationship.
 I would argue that that is an inappropriate way to behave; it is probably unprofessional, and no doubt such behaviour would be dealt with by the school authorities. However, that is very different from a situation in which the teacher stays behind after class with three pupils to give them extra tuition and starts to masturbate, knowing that the pupils are watching him. That would be for the purpose of sexual gratification. 
 We want to be clear. We want to capture an offence in which the fact that children are present and watching the sexual activity gives rise to the offender's sexual gratification. We do not want to cover any other sexual activity that may be going on. I hope that that practical example will demonstrate why in our view it is important that the ''sexual gratification'' wording remains.

Dominic Grieve: I have to say that when I read the clause and the other clauses it had not occurred to me that the use of the words ''sexual gratification'' was designed to narrow the scope of the definition that ''the activity is sexual''. I had not understood that at all. I had interpreted ''sexual gratification'' as anything that gives a person sexual pleasure. Engaging in passionate kissing in the back of a coach can give someone as much sexual pleasure as sexual intercourse, although it may be of a different nature. That was why I felt that the definition was strange.
 I do not know whether the words ''sexual gratification'' are defined in the Bill; I confess that I have not seen, and have no recollection of, such a definition. If there is such a definition, that would support what the Under-Secretary has just said. Otherwise, if the words: 
''for the purpose of obtaining sexual gratification''
 are given their ordinary English meaning, my interpretation—although his and that of his officials may be different—would not lead me to think that there was a distinction made, for instance, between passionate kissing and masturbation. That is something that the Government ought to consider. 
 However, perhaps I am quite wrong and there is a well-established definition of which I am unaware.

Paul Goggins: We keep returning to the definition of the word ''sexual'' or, in this context, ''sexual gratification''. For the purposes of the amendment, the important point is that the ''sexual gratification'', however that is finally defined, is gained from engaging in the act in the presence of the child in relation to whom the adult has a position of trust. That is the key point.

Dominic Grieve: On that basis, a teacher and his partner could take a party of schoolchildren to some woodland and, knowing but not caring that the children were watching, they could decide to engage in full sexual intercourse under a tree. In those circumstances, am I to understand that, because the teacher would be able to say that the purpose of the act was not to obtain sexual gratification from the children watching him do it, he would be exculpated from the offence? I cannot believe that that is what the Under-Secretary intends. If that is not what he intends, I am still unpersuaded that the words:
''for the purpose of obtaining sexual gratification''
 are necessary, because they only need to be there to qualify the ''activity'' being ''sexual''. I appreciate that the distinction is the degree of culpability, but if someone in the position of trust engages in inappropriate activity, why has he not committed an offence if the activity, although inappropriate, was not engaged in for the purpose of obtaining sexual gratification? 
 The difficulties faced by a jury in resolving such issues seem considerable. I question whether the provision is needed, but I leave the matter to the Minister. I shall not press the amendment to a Division, but I hope that the hon. Gentleman will think about it further. At present, I am not completely persuaded that that part of the clause is necessary, although I understand the motive behind it.

Paul Goggins: Behaviour such as full sexual intercourse taking place under a tree would be highly unprofessional and quite wrong. However, the hon. Gentleman asked me to say whether that act would be different from the act that I described. My immediate response is that the more outrageous the act, the more likely it is to be done in the knowledge that the children were watching and for sexual gratification purposes.

Dominic Grieve: Am I to understand that the sexual gratification is to be obtained from the act itself or from the fact that other people are watching it? The distinction will become extraordinary difficult for a jury to resolve. If the jury has to resolve that difficulty, a complicated question will be asked of it.

Paul Goggins: I do not think that a jury would have difficulty in drawing such a distinction. Clearly, such an act would be a sex offence. In trying to uncouple—pardon the pun—the two scenarios of whether it is engaging in the act or the fact that people are watching it that gives sexual gratification, I must say that such activity is all part of the same act of sexual
 gratification. I am sure that a jury would judge it as such.

Dominic Grieve: I am grateful to the Minister. I shall go away and think about the matter. I should be grateful if any member of the Committee has any views on it, which we can discuss afterwards. I remain slightly puzzled by the double requirement. If the activity is sexual and done deliberately in the presence of children, that is what we want to criminalise. To tell a jury that it can convict only if it is satisfied that the purpose of the act is sexual gratification is a complicated feature that is difficult to understand, as is the purpose behind it. Surely the clause is designed to stop an activity that is deliberately carried out in an inappropriate fashion.

Annette Brooke: I shall be grateful if the hon. Gentleman can deal with my query. There are two different tracks of argument. The two schoolteachers would know that their kiss was being observed, but would they have had an intention of that happening? I wonder whether the clause should state, ''knowing and intending that B should be aware''?

Dominic Grieve: The hon. Lady makes a good point. That could be an alternative approach. It would still remove that part of the clause which the amendment would remove. I am slightly sorry that I may have not got across my point. I may not even have a point, but I shall reflect on the matter. In the meantime, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 50, in 
clause 20, page 9, line 10, leave out from 'it' to 'knowing' in line 11 and insert— 
 '(i) when another person (B) is present or is in a place from which A can be observed, and 
 (ii) '.—[Paul Goggins.]
 Clause 20, as amended, ordered to stand part of the Bill.

Clause 21 - Abuse of position of trust: causing a child to watch a sexual act

Amendment made: No. 51, in 
clause 21, page 10, line 5, leave out 
 'a photograph or pseudo-photograph' 
 and insert 'an image'.—[Paul Goggins.]
 Clause 21, as amended, ordered to stand part of the Bill. 
 Clause 22 ordered to stand part of the Bill.

Clause 23 - Positions of trust

Humfrey Malins: I beg to move amendment No. 145, in
clause 23, page 11, line 30, at end insert— 
 '( ) A shall have a defence if at the start of his work at the educational institution— 
 (a) A is under 21, and 
 (b) B is 16 or over, and 
 (c) the educational institution did not expressly draw his attention to section 23 of this Act prior to the start of any sexual relationship between A and B'.
 In this clause we are dealing with positions of trust. Early on in Committee there was concern about schoolchildren—particularly head boys or girls, for example—who are just over 18 and in a position of trust as far as those just under 18 are concerned. That has been rectified, but there is still an issue that I would like to consider concerning line 30 in subsection (5). The amendment would provide an exemption in relation to two people, one of whom is being educated at a school, and one of whom is not. 
 The amendment would cover the case of a gap-year student. It relates to a most unlikely scenario, but we are considering unlikely scenarios to see what might happen if they arise. It is not unusual for a young man to leave school and return shortly afterwards as a gap-year student. I have in mind the school in Leatherhead in Surrey that my son has just left. He left in the summer term, and this term, one of his best friends, who left at the same time as he, has returned to assist with sports coaching for some months. He is not a pupil; in effect, it could be argued that, under the Bill, he is in a position of trust in relation to other pupils at the school. 
 Of course, the sixth form, lower and upper, of the school contains a number of girls whom the boy has known—indeed, he has been part of the education system with them. They were chums while he was in the sixth form. Let us take the example of a girl who was in the lower sixth when he was in the upper sixth. The boy leaves and comes back as a coach for a term or two of sport, and she moves into the upper sixth. The Minister will have got the point already. I want to know, first, whether that gap-year student is in a position of trust and, secondly, whether he will have committed an offence under any of the provisions that refer to breach of trust in relation to one of the girls in the sixth form, subject to their both being the relevant age. 
 My amendment would protect the boy because he is under 21 and she is over 16, notwithstanding that he is undoubtedly in a position of trust, because he would have a regular caring responsibility and so on for the young girls in the upper sixth. It is a probing amendment and I do not propose to press it to a Division, not least because our voting strength has gone down by 33.3 per cent. in the past few minutes, and if our numbers go down any further there will be just me. I think that our honourable Whip is coming to our rescue. There are various reasons why I will not press the amendment to a Division, but I would like to hear from the Under-Secretary about it.

Annette Brooke: I understand the hon. Gentleman's point about the gap-year student, but when I first read the amendment I read it as applying to someone undertaking teacher training. A person who was doing teacher training at the normal age would fit into that category. It would be bad practice for anyone who was training to be a professional to be exempt on the grounds that they did not know. The onus must be on the professional institutions to ensure that that happens. Although I can understand the scenario as
 described, anyone who volunteers, which is more or less what we are talking about, must come under the same provision. Although I appreciate that this is only a probing amendment, it attacks what we are trying to do in this clause.

Paul Goggins: I appreciate the spirit in which the hon. Member for Woking (Mr. Malins) moved the amendment. I say to him in the gentlest possible way, because I know that that is the style he prefers, that, even if the amendment were right, it is probably in the wrong place, because it is in the bit of the Bill that deals with a position of trust. It should probably refer to the part that deals with the offences. Even if it were in the appropriate place, however, there are some flaws in his proposing that the person is under 21 when he starts work at the establishment and that the young person is 16 or over. I suspect that the purpose behind the hon. Gentleman's drafting was that those should be the ages at which the sexual relationship began. It is possible, however, for someone to have started work at the establishment when they were 19 and at the age of 40 mount a defence using the hon. Gentleman's amendment.
 I strongly believe that age is no defence—the position of trust is the important thing. Age cannot be a defence. I am sure that the Committee will be united on that, and that the hon. Member for Mid-Dorset and North Poole would echo it, too. 
 The hon. Lady raised the issue of what an organisation and the professional bodies associated with it should do to ensure that people are aware of this piece of legislation. That is important. Under existing arrangements it is not solely for employers to inform teachers about their professional and statutory responsibilities. The standards for qualified teacher status, which were set by my right hon. Friend the Secretary of State for Education and Skills, require candidates to demonstrate that they are aware of and should work within the statutory frameworks relating to teachers' responsibilities. The Teacher Training Agency issues new teachers with guidelines on the legal framework within which they will be practising. People who are already teachers should be in no doubt about their responsibilities. 
 The creation of this offence in the Sexual Offences (Amendment) Act 2002 was widely reported and debated in the media and extensively publicised throughout the teachers' unions. Such behaviour has always been regarded as unprofessional and teachers have been liable to disciplinary action. It is right that even if a defendant were able to prove that he was not, for some reason, aware of his obligations under the law, that should not allow him a defence against this offence. The amendment would, in effect, provide an unlimited ''get out of jail free'' card for young teachers, regardless of whether they knew that their behaviour was wrong or constituted an offence. 
 We all know that in England and Wales ignorance of the law is no excuse. We cannot make an exception to that widely accepted principle.

Humfrey Malins: Under my amendment, if the educational establishment had drawn the young gap-year student's attention to the section of the Act—or
 not, as the case may be—he would not have a defence. Is there not a little bit of merit in my general thrust? I appreciate the point about the 40-year-old starting a relationship, but it is a bit different when the boy concerned might be 19 and a bit and the girl is 17 and three quarters.

Paul Goggins: I respond in the spirit in which the hon. Gentleman asked the question. The establishments—the training organisations, the professional bodies that represent people in that profession—have a responsibility to ensure that every teacher, whether new or current, is well aware of their responsibilities. I am trying to reassure the Committee that that already happens. Ignorance cannot be an excuse in the law, and, in any event, there should not be any ignorance because all the bodies involved instruct members of the profession to know fully their liabilities and responsibilities. I hope that I have satisfied the hon. Gentleman that his concerns are taken on board in the Bill, and I hope that he will consider withdrawing his amendment.

Humfrey Malins: The hon. Gentleman has responded helpfully as always, and in just the sort of tone that is guaranteed to result in a withdrawal of the amendment. I do not blame myself for having raised the issue, but I am grateful to him. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Paul Goggins: I beg to move amendment No. 207, in
clause 23, page 11, line 30, at end insert— 
 '() This subsection applies if A is appointed to be the guardian of B under Article 159 or 160 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).'.

Roger Gale: With this it will be convenient to discuss Government amendments Nos. 208 to 212.

Paul Goggins: I do not want to detain the Committee unduly. We have explored some of the wider issues related to abuse of trust. The purpose of the Government amendments is to widen the scope of the abuse of trust offences to include additional categories of persons who regularly look after children in the community on an individual basis or who, during the course of performing their functions, regularly have unsupervised contact with children.
 By means of amendments Nos. 207 to 209, those persons will now include: children's guardians in family court proceedings; children and family reporters involved in family court proceedings affecting children's welfare; persons who supervise children pursuant to a care order, supervision order or educational supervision order; children's guardians in relation to adoption proceedings; and children's guardian ad litem in private law Children Act 1989 proceedings and in cases determining wardships. Some of those additional categories, in particular children's guardians and those who supervise children pursuant to a care order, supervision order or educational supervision order, are being added in order to honour an undertaking given when the offences were debated in another place. In conjunction with other 
 Departments, we have identified some additional categories for inclusion.

Hilton Dawson: My hon. Friend seems to have missed out children who are accommodated under section 20 of the Children Act 1989. Is that a deliberate omission?

Paul Goggins: With his great experience, my hon. Friend makes an interesting observation that we may return to on Report. We want to ensure that all eventualities are covered in the Bill. I hope that he is satisfied with that assurance.
 The categories of persons that we have identified can all play important roles in a child's life, and they have sufficient power and influence to justify inclusion within the scope of the offences. I trust that hon. Members agree, and I can advise them that the consideration of including additional categories is ongoing. With hon. Members' forbearance, we will return to the matter on Report. Amendments Nos. 207, 208 and 209 define the terms care order, supervision order and educational supervision order for the purposes of the offences. 
 Amendment agreed to. 
 Amendments made: No. 208, in 
clause 23, page 11, line 33, at end insert— 
 '() This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 (c.41) or Article 4 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) on matters relating to the welfare of B, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.
 No. 209, in 
clause 23, page 11, line 39, at end insert— 
 '() This subsection applies if— 
 (a) B is subject to a care order, a supervision order or an education supervision order, and 
 (b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis. 
 () This subsection applies if A— 
 (a) is an officer of the Service appointed for B under section 41(1) of the Children Act 1989 (c.41), 
 (b) is appointed a children's guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), or 
 (c) is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S.I.1991/1247) or under Article 60(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), 
 and, in that capacity, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.—[Paul Goggins.]
 Clause 23, as amended, ordered to stand part of the Bill.

Clause 24 - Positions of trust: interpretation

Sandra Gidley: I beg to move amendment No. 187, in
clause 24, page 12, line 3, leave out 'regularly'.

Roger Gale: With this it will be convenient to discuss the following amendments:
 No. 150, in 
clause 24, page 12, line 7, leave out 'regularly'.
 No. 151, in 
clause 24, page 12, line 8, leave out 'regularly'.
 No. 197, in 
clause 44, page 22, line 39, leave out 'regular'.
 No. 198, in 
clause 44, page 23, line 3, leave out 'regular'.
 No. 199, in 
clause 44, page 23, line 8, leave out 'regular'.

Sandra Gidley: This is a simple set of amendments to try to close what I, and others, regard as a potential loophole in the law. Clause 24, which refers to interpretation of positions of trust, states that
''a person looks after persons under 18 if he is regularly involved in caring for, training, supervising or being in sole charge of such persons.''
 It is the word ''regularly'' that is causing great concern. In some cases, an adult might be in a position of trust where the contact with the child is limited—a supply teacher or a bank worker, for example—but it only takes one or two contacts to abuse a child. It is wrong that such an adult—who knows perfectly well that they are in what anyone would regard as a position of trust—could exploit this facet of the Bill. 
 If the amendments are accepted and references to regularity are removed, the position will be much tighter because anyone who seeks to abuse a vulnerable child could decide that this law would make it too difficult for them to stay in one care home because it makes their position there untenable. They would be unable to carry on doing what they are already doing. 
 That person can put themselves in the hands of an agency or another organisation that enables them to abuse at a number of homes in an area. That situation is difficult: a fellow care worker may have suspicions, but the next day the abuser might be working in a different home, and it takes a while to build up a pattern of suspicion. Very often these people are in different homes or settings or educational establishments, so it is not easy to get together and to raise concerns. We are creating the potential for someone to commit abuse on a wide scale just because they are not having regular contact with a specific individual. 
 The ''position of trust'' definition also applies to anyone who works with children in schools in a way that could be regarded as regular, such as a peripatetic music teacher. What criteria are used to define what is regular in this context? The Government should think about these amendments carefully. Are they satisfied that they are not creating the loophole that I have described? 
 The issue was discussed at great length in the House of Lords, where an attempt was made to amend the Bill in this way. It failed. I do not know whether the Government have reflected on the matter since then. We all agree that the aim of the Bill is to protect the vulnerable, and we could achieve that in a better way in this instance.

Humfrey Malins: I shall speak to amendments Nos. 150 and 151, which were drafted by my hon. Friend the Member for Beaconsfield. They would leave out the word ''regularly''.
 I want to reinforce what the hon. Member for Romsey said. It would be helpful to get from the Under-Secretary—via his officials—a full definition of what is meant by the word ''regularly''. There are so many nuances in our language—in phrases such as ''from time to time'', ''frequently'' and ''regularly''. 
 In teaching and allied worlds in particular, there are many people who are undoubtedly in a position of trust but who may not be regularly in that position. I have in mind a few different examples of that. What about the person who runs a holiday camp for one week in the summer, where the children are dropped off by their parents and given sporting and other help and generally advised and looked after? Such holiday and sports camps are for one week a year, and then it is end of story. Is that regular? The peripatetic teacher was also a good example. However, what happens with the other teacher—the person who has control, is in a position of trust and who, once a month, drops in to a school? I suppose that such contact must be regarded as regular—or is it once every two months or once every three months? If I were on a jury, I should not want to decide such matters without knowing what the Government mean by ''regularly''.

Paul Goggins: I have been given helpful advice, which goes to the heart of the question, ''What does regular mean; how is it defined?'' which was asked by the hon. Members for Romsey and for Woking. Whether regular contact applies in particular circumstances is for the courts to decide. It is not one-off contact. It must have a pattern and be consistent. We have tried to draft the clause widely to capture several relationships that could be defined as regular. Clearly, a full-time class teacher or a member of staff in a children's home is in regular contact with the child. However, the peripatetic teacher who takes a music class once a week, about whom we have already heard, is also in regular contact with the child. The physiotherapist who gives treatment to a child one day a week has a regular relationship with the child.

Sandra Gidley: The hon. Gentleman mentions the peripatetic teacher who teaches once a week. I accept that that would be caught under the definition of ''regular''. What about supply teachers? There are always occasions when a school must go to the C list for someone to look after a class in the knowledge that the teacher is not very good, although not necessarily for the reasons under discussion. Teachers will go into a school on a one-off basis.

Paul Goggins: I am grateful to the hon. Lady for raising that point. Her question has two answers. First, the supply teacher who takes over from the regular classroom teacher and has the regular contact with the child could be said to have a relationship that reoccurs regularly. Secondly, a supply teacher may teach children in a school, which has a sixth form. There may be a 17-year-old in the school who does not meet the teacher in the school and is never taught by him. We would not want to capture that teacher under
 the clause, because there is no regular contact by definition of the child being at that school and the teacher being a supply teacher at the school.
 The hon. Lady is looking quizzical, so perhaps I have not persuaded her of my argument. I repeat that the supply teacher who takes over the full-blown, regular relationship with the pupil in the class is clearly caught under the Bill. As for the teacher who goes to the school as a supply teacher and who never comes across the 17-year-old with whom he may take up a sexual relationship, that is a different relationship. There is no regularity in such contact.

Sandra Gidley: The hon. Gentleman defeats his own argument. He said that there was no contact at the school between the 17-year-old and the supply teacher and that it was a later contact. Clearly, that relationship would not want to be brought under the remit of the Bill. Will he confirm that that was his argument?

Paul Goggins: What I can confirm concerns the 17-year-old who is in a sexual relationship with a supply teacher who came to the school on a one-off basis. I did not say that the teacher ''did not meet the child'' in the course of carrying out his duties; I said, ''may not have met the child''. We do not wish to capture such a person under the provisions. We want to capture the supply teacher in a classroom who has regular contact with the child, even for a short time. That is a different relationship. As with all things in the Bill, a line must be drawn and we believe that we have struck the right balance.

Sandra Gidley: I am disappointed to hear the hon. Gentleman say that the right balance has been struck. He spent much time talking about schools, but the clause applies to more vulnerable children, perhaps with a learning disability, where the situation is much less clear. Unless there were some big falling-out and a vexatious complaint, the relationship that he described between a 17-year-old and a supply teacher would be very unlikely to result in a complaint against the teacher, because it involved a consensual act.
 The matter becomes more difficult if people who less easily understand the boundaries of a sexual act are involved, and we shall come on to clauses on that issue later. Such people may not understand some of the ramifications. For those cases where care workers or therapists go to an institution occasionally, there is a real question of vulnerability that must be addressed. We must find a way to protect people in such situations. 
 I am very disappointed that the Under-Secretary will not give way on any aspect of this debate. I shall not press the matter to a vote, but it is very likely that we will want to revisit it on Report. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendments made: No. 210, in 
clause 24, page 12, line 23, at end insert— 
 ' ''care order'' has— 
 in relation to England and Wales, the same meaning as in the Children Act 1989 (c.41), and 
 in relation to Northern Ireland, the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.
 No. 211, in 
clause 24, page 12, line 34, at end insert— 
 ' ''education supervision order'' has— 
 in relation to England and Wales, the meaning given by section 36 of the Children Act 1989 (c.41), and 
 in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.
 No. 212, in 
clause 24, page 13, line 8, at end insert— 
 ' ''supervision order'' has— 
 in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c.41), and 
 in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.—[Paul Goggins.]
 Clause 24, as amended, ordered to stand part of the Bill.

Clause 25 - Sections 18 to 21: marriage exception

Question proposed, That the clause stand part of the Bill.

Vera Baird: I wish to raise the same point about the marriage exemption that was raised this morning. In effect, the debate has already taken place under clause 16 about similar kinds of activity. The additional factor in clauses 18 to 21 is that the person is in a position of trust—that, if anything, makes the position worse—but there is no reason why, if what is outlawed against a child in clauses 18 to 21 is child abuse, there should be any permission for it through a foreign marriage.
 I accept that the further distinction is that one can only commit the offences discussed this morning with a person who is under 16, whereas these can be committed by a person in a position of trust even against a person who is over 16—in other words, against a person who could lawfully marry in the UK. Therefore, the mischief is not as complete. 
 None the less, all the offences to be committed by a person in a position of trust can be committed against a person under 16, who we would all say ought not to be able to consent to any of them, or to be relieved of the opportunity of refusing to consent, by being married. I respectfully suggest that, if the Solicitor-General is prepared generally to review the marriage exception, she should consider clause 25 as well.

Harriet Harman: The points that my hon. and learned Friend makes follow on from the well-made points in the earlier debate. It goes without saying that reviewing the marriage exception in the context in which we discussed it this morning and the response that I gave then would apply similarly to the abuse of trust. The question is whether we have drawn the balance right, with the right age, the right sort of activity and the right defence. Obviously, the abuse of trust issue would have
 to come into our consideration of and consultation on that point.

Annette Brooke: I thank the Solicitor-General for that. I believe that many of the points that we discussed this morning apply to this clause. It occurred to me that the marriage exemption is almost discriminatory, given that some relationships in the 16-to-18 age range would be allowed but others would be disallowed; for example, if people had chosen to live together or were of the same sex. I wonder whether discrimination is involved.

Harriet Harman: If the hon. Lady's point is that there is discrimination in relation to the marriage exemption, she is right. It is discriminatory—it discriminates between those from a different country who had a lawful marriage there and came to this country, and those from this country. That is the whole point of the marriage exemption. It is available to foreign nationals but not to those domiciled here who have a lawful marriage according to the laws of this country. I hope that we will not go back into the marriage exemption.

Roger Gale: Order. I can say distinctly that we will not go back into the marriage exemption.

Annette Brooke: My additional point was about covering the age range of 16 to 18. I thought that that was another point on top of what we discussed this morning. I am not advocating the point of view at all but I think that, in the wider sense, the marriage exemption is discriminatory.

Harriet Harman: We will consider the hon. Lady's points, and perhaps we will have the opportunity to discuss them with her further when we reflect on the issues to reconsider between now and Report.
 Question put and agreed to. 
 Clause 25 ordered to stand part of the Bill.

Clause 26 - Sections 18 to 21: sexual relationships which pre-date position of trust

Sandra Gidley: I beg to move amendment No. 188, in
clause 26, page 13, line 29, at end insert 
 'and that the relationship commenced before the defendant was aware that he would be in a position of trust.'.
 I tabled the amendment to clarify what would happen in certain situations. It occurred to me that someone who was keen to have a relationship with a person could quite easily make sure that they were in employment that would facilitate meeting that individual and prolonging a relationship. The first part of the relationship may have been conducted under some sort of duress. I fully admit that that is a slightly obtuse point. 
 What protections are in place to ensure that the defendant who is accused of abusing the position of trust; or rather how easy will it be to make the defence that he did not know that the position of trust would—I apologise, I am tying myself in knots. I knew 
 precisely what I meant when I drafted the amendment. [Laughter.] It has been a long haul since then. The point is that we do not want people manoeuvring themselves into positions proactively. We are learning that people are very cunning. I drafted the amendment after the briefing from the paedophile unit, when I assumed that everyone was out to do terrible things, and that everything in the world was a conspiracy, and it occurred to me that the clause might have a loophole.

Paul Goggins: When the hon. Lady was arguing forcefully and persuasively earlier, she failed to persuade me. Now that she is at her most obtuse, to use her word, she has come up with an argument that has some merit, although she may not believe it. [Laughter.] The amendment was probably drafted in haste following the presentation, and clearly there are some difficulties with its present form. I would want to take a further look at it.
 The point is that abuse of trust offences are based on the principle that the person can use that position of trust to manipulate a young person into a sexual relationship. If the sexual relationship is entered into before the relationship of trust exists, the fact that the defendant knows that he will be in a position of trust in relation to the child at some point in future is irrelevant. However, there is an argument that, where the child is also aware that a relationship of trust will arise between them, that might influence their choice over the sexual activity. A practical example, which is always worth citing, is where the child knows that the person concerned will be their personal tutor at school for the whole of the next academic year. That could put the child in an extremely awkward position and influence their decision to agree to have a sexual relationship. I recognise that the amendment was tabled from a genuine concern to get the matter right, to protect people and to ensure that people are not exploited and that vulnerability is protected. I urge the hon. Lady to withdraw the amendment but I shall give further consideration to the matter, so that we get the drafting of the legislation as near perfect as possible.

Sandra Gidley: The Under-Secretary is quite right to say that the amendment was drafted in a hurry. I am happy to withdraw it, reassured that I occasionally have flashes of something with which he can find sympathy. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 26 ordered to stand part of the Bill. 
 Clause 27 ordered to stand part of the Bill.

Clause 28 - Inciting a child family member to engage in sexual activity

Humfrey Malins: I beg to move amendment No. 203, in
clause 28, page 14, line 31, leave out sub-paragraph (ii).
 It is at moments such as this that I miss my hon. Friend the Member for Beaconsfield because, as I rise to move the amendment, which he drafted with such care, I look into the innermost recesses of my mind to ask myself what he had in mind when drafting it. I am 
 quite clearly of the view that while I was out of the Room making a phone call a little earlier this afternoon a similar point cropped up and that my hon. Friend advanced his argument then. One of my hopes is that my hon. Friend, with his normal courtesy, told the Solicitor-General a day or two ago exactly what his argument on this amendment was going to be. That will enable her when she responds to my moving of the amendment to tell me what my hon. Friend intended. 
 My instinct is to say this. I think that my hon. Friend and I seek in this amendment, which concerns a child being under 13, to make the point that we must examine clause 28, clause 18 and clause 11. The word ''duplication'' comes to mind. I am looking desperately at the Solicitor-General to see if that is the point, and I think that it is. In any event, that is how I propose to lay my argument out. I also think that there is a sentencing issue here, to which the hon. and learned Member for Redcar alluded earlier. That is an important point, which I hope that the Solicitor-General will address at length when she answers. There seems to be duplication here. Is not this point already covered in clause 11? 
 I hope that I have outlined the arguments satisfactorily.

Harriet Harman: The hon. Gentleman has told us what he thinks that the hon. Member for Beaconsfield would have said had he been here to move the amendment. I rise to say what I think that my hon. Friend the Under-Secretary would have said in response to the amendment were he responding to it.
 I think that the hon. Gentleman has got to the right point, and perhaps I can reassure him on it. We have potential benevolent duplication here, but it is for a purpose. Amendment No. 203 would remove the specific reference to those aged under 13 from the offence in clause 28 of inciting a family member to engage in sexual activity. However, since the offence applies to all children aged under 18 unless the defendant reasonably believes that the child is 18 or over, the amendment has the effect of making the reasonable belief in age provisions apply to the under-13s as well as to those aged 13 or over but under 18. 
 The offences in clauses 27 and 28 are designed to protect children in familial and quasi-familial settings. It is sadly clear that much sexual abuse against children is instigated in such settings, where children should be at their safest. 
 Our debate on clauses 6 to 9 highlighted the Government's policy intention to afford maximum protection to those aged under 13. The offences in clauses 6 to 9 make no provision for reasonable mistaken belief in age, although they could involve sexual activity with a child not known to the offender. That is defensible because, despite the fact that some children can look older than they are, maximum protection should be afforded to children under 13, however old they may look. 
 There are two reasons why the argument against providing a mistaken belief in age defence is even stronger in respect of clause 28. First, the clauses cover abuse in familial settings in which it is easier to establish the actual age of the child involved before engaging in sexual activity. Secondly, the offence applies to children aged up to 18. It is hard to mistake a child aged 12 or under for one aged 18 or over; the age gap is simply too great. 
 If the purpose of the amendment is completely to remove children under 13 from the offence in clause 28, I would like to explain why such children are included in these clauses, although we would generally expect an offence under clauses 6 to 9 to be charged where the child victim is under 13. We included the under-13s in the offences in clauses 27 and 28 to close a potential loophole—not the one spotted by the hon. Member for Woking—albeit one that would rarely arise. 
 The loophole would arise in the course of a trial for an offence under clause 28 against a child believed to be 13, when it became clear that she was in fact 12. The defendant could not be convicted of a clause 27 or 28 offence if they applied only to children aged 13 or over, but he would be liable for an offence under clauses 6 to 9. Because some of those offences have higher penalties, the judge might not allow the indictment to be changed because the offender would not have had an opportunity fully to prepare his case in answer to the more serious charge. He might then have to be acquitted, even if the evidence had established that he had engaged in sexual intercourse below the age of consent. 
 Extending the offences at clauses 27 and 28 obviates that problem. For those reasons, the clause is right as drafted, and I ask the Committee to resist the amendments.

Humfrey Malins: That was a comprehensive reply. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 28 ordered to stand part of the Bill.

Clause 29 - Family relationships

Harriet Harman: I beg to move amendment No. 109, in
clause 29, page 15, line 13, leave out from beginning to second 'or'.

Roger Gale: With this it will be convenient to take Government amendment No. 110.
 No. 152, in 
clause 29, page 15, line 19, leave out subsection (b).
 Government amendment No. 111.

Harriet Harman: I know that we are not allowed to use visual aids in Committee, but I have one because the matter is complicated. We are examining a matrix of who is or is not allowed to have sex with which family members at what age. We need to identify the changes that the Bill makes and compare the new position of the law with the old position.
 I will explain the Government amendments and why we will resist amendment No. 152, tabled by the hon. Member for Beaconsfield, in relation to cousins. The child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment, where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create opportunities for exploitation and abuse. A great deal of thought was given to the scope of the offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim. Those attributes extend beyond a child's immediate blood relatives. 
 The definition of a family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Thus the definition of a familial relationship in clause 29 extends beyond the immediate blood relatives of the child covered in subsection (2) and falling within the scope of the offence simply by virtue of that relationship. 
 Subsection (3) deals with more distant family members who are or who have been part of the child's household, or who are or have at any time held a position of trust in relation to the child. The automatic inclusion within the sphere of criminality is contained in subsection (2), whereas in subsection (3) it is conditional not only on them being in one of the categories in paragraphs (a) to (d), but on them having lived in the same household or regularly been involved in caring for, training, or supervising— 
 Sitting suspended for a Division in the House. 
 On resuming—

Harriet Harman: Thus, the definition of familial relationship in clause 29 extends beyond the immediate blood relatives of the child covered in subsection (2), who fall within the scope of the offence simply by virtue of that relationship. Subsection (3) covers more distant family members who are or have been part of the child's household, or who hold or have at any time held a position of trust in relation to the child.
 Subsection (4) goes wider and covers those who live in the same household as the child and are regularly involved in caring for, training or supervising the child, or are in sole charge of the child. Such sexual relationships might be justifiable once adulthood is reached, but are within the scope of the offences in order to protect children from being manipulated or coerced into unsuitable sexual relationships before they become adult. Thus, a lodger who lives as part of a child's household and babysits for that child would be prohibited from engaging in any form of physical sexual activity with that child. 
 At present, persons who are or have been the step-parent of a child fall within the scope of subsection (2) 
 and are automatically prohibited from sexual activity with that child until he or she reaches the age of 18. We now believe that they should only fall within the scope of subsection (3), which refers not to absolute prohibition but conditional, only if they live or have lived in the same household as the child, or they are or have been regularly involved in caring for, training, supervising or being in sole charge of the child. 
 The reason for that proposed change is that anyone who is or has been the partner of a child's parent falls within the scope of subsection (3). The definition of a partner in the Bill—this is consistent with the definition used elsewhere in legislation—is someone who lives in an enduring family relationship with another person. A partner is in the same position in relation to his partner's child as a step-parent—that is, there is no co-sanguinity. 
 Step-parents and partners of parents may not necessarily live in the same household as their step-child, or have any role in their upbringing. For example, they might have no co-sanguinity and no role in their upbringing. For example, where a teenager acquires two step-parents after the remarriage of divorced parents, and the step-parent or partner-of-parent relationship results from marriage or partnership with one of the child's parents, the relationship with the parent is not, in the normal course of events, entered into to create a relationship with the child. On further consideration, we can see no reason to treat the two categories—step-parent and parent's partner—differently. Nor do we believe that those should be grouped in the same category as adults who have a blood, or adoptive or fostering, relationship with a child and have taken a positive step to create a parent-child relationship. 
 Amendments Nos. 109, 110 and 111 make it clear that a step-parent, whether by marriage or partnership, will only fall within the scope of the abuse of trust offences if he lives or has lived in the same household as the child, or is or has been regularly involved in caring for, training, supervising, or being in sole charge of the child. 
 Amendment No. 152, which was tabled by the hon. Member for Beaconsfield, would remove cousins from subsection (3) and take them outside the scope of the offence. Cousins have always been included in the scope of such offences, although they are not currently included in the Bill. That was generally supported in another place. They are being moved from where they are at the moment to fall under the scope of the offence.

Humfrey Malins: The Solicitor-General is being helpful. I think that I am correct in saying—perhaps she will confirm this—that we are dealing principally with first cousins, rather than distant cousins.

Harriet Harman: That is right. I think that the hon. Gentleman is referring to subsection (5)(b), which says:
'' 'cousin' means the child of an aunt or uncle.''
 We are not talking about second or third cousins once removed, but about people who are the child of an aunt or uncle who have lived in the same household, or 
 are regularly involved in caring. I hope that that reassures the hon. Gentleman. 
 We believe that it is right to include cousins in the scope of the offences if they live or have lived in the same household as the child, or if they are or have been regularly involved in caring for, training, or supervising the child. We are getting to the relationship between two people, as well as the question of co-sanguinity. Where one cousin is so closely involved in the life of another, there will clearly be the opportunity for exploitative behaviour to take place and for an unsuitable relationship to develop. It would be wrong to exclude them from the scope of the offences. For that reason we do not accept the amendment. I hope that hon. Members will support the Government amendments. 
 Amendment agreed to. 
 Amendments made: 
 No. 110, in 
clause 29, page 15, line 18, leave out 
 'partner of the other's parent' 
 and insert 'other's stepparent'.
 No. 111, in 
clause 29, page 15, line 40, at beginning insert 
 ' ''stepparent'' includes a parent's partner and'.—[The Solicitor-General.]
 Clause 29, as amended, ordered to stand part of the Bill. 
 Clauses 30 and 31 ordered to stand part of the Bill.

Clause 65 - Sex with an adult relative: penetration

Humfrey Malins: I beg to move amendment No. 153, in
clause 65, page 31, line 37, at end add 
 'uncle, aunt, nephew or niece'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 154, in 
clause 66, page 32, line 17, at end add 
 'uncle, aunt, nephew or niece'.

Humfrey Malins: Both amendments would add the same wording—
''uncle, aunt, nephew or niece''—
 to two separate, successive clauses. Clause 65 deals with the ways in which A may be related to B—the amendment sets out some of the more obvious ones. It occurred to my hon. Friend the Member for Beaconsfield and me that it would be appropriate to add uncle, aunt, nephew and niece. It would be helpful to know whether there was a particular reason why they have not been added. 
 The Solicitor-General has mentioned co-sanguinity—a principle with which we are all familiar. The question for the Government is why are aunts and uncles not deemed to be in the same position as half-brothers and half-sisters on the basis of co-sanguinity? That is an important question and I 
 would be grateful if the Solicitor-General let me know whether she thinks that we have hit upon an interesting point.

Harriet Harman: As ever, the hon. Members who have tabled those amendments have hit upon an interesting point. I shall like to explain why the Bill is drafted as it is; perhaps they will feel that the explanation is acceptable.
 Amendments Nos. 133 and 154 would have the effect of including the relationships between uncles and aunts with their nephews and nieces within the scope of the sex with an adult relative offences in clauses 65 and 66. They would prohibit—in the same way that clauses 65 and 66 prohibit mother, father, sister, brother, half-sister and half-brother relationships—a relationship with not only the child in that relationship of aunt, uncle, nephew or niece, but a relationship with an adult. It is currently prohibited for an aunt or uncle to have a sexual relationship with their nephew or niece up until the age of 18; thereafter, when it becomes an adult offence, it is not prohibited. 
 As I understand the amendment, it is based on the fact that the degree of co-sanguinity—oh, it says consanguinity, perhaps I have been using the wrong term—between such relatives is the same. The hon. Gentleman said that the degree of consanguinity is 25 per cent., which is the same as that between half siblings who fall within the scope of the offences. I am also aware that aunts and uncles and nephews and nieces are prohibited from marriage for that reason. At the moment, an aunt and uncle can have sex with a nephew or niece, but they cannot marry. The original incest offences in the Sexual Offences Act 1956, on which the offences are based, were founded equally on fears of genetic abnormalities in children born of a close blood union and on the public distaste for sexual relationships between such close blood relatives. 
 Although consensual sexual activity between adult family members may not be harmful to society as a whole, an adult's right to exercise sexual autonomy in their private life is not absolute. We believe that, even in modern times, society has the right to impose certain standards on behaviour, where they are intended to protect people within the family from abuse. In the interests of not interfering unnecessarily in the rights of adults to engage in consensual activity, we have decided to continue to restrict the family members covered by those offences to those already covered by the existing incest offences. However, in line with the general approach that we have taken in the Bill, we have gender-neutralised the offences. Clearly, the arguments about genetic abnormalities in offspring do not apply in relation to same-sex relationships. 
 In light of the fact that we class all forms of penetration—not only penile penetration of the vagina and anus, but penile penetration of the mouth—as the most serious level of sexual activity throughout the Bill, we have widened the scope of the offences to cover all forms of sexual penetration, and we have not restricted them to intercourse. 
 Although the argument about genetic abnormalities is therefore still valid, it is not the sole justification for the offences, and we need to be certain that it is right to extend their scope. The fact that close family members may be groomed from a young age into agreeing to sexual activity with a family member once they are 18 is one justification for creating the offence, and I realise that such a situation could exist between aunts and uncles and their nephews and nieces. I also understand that some people might find sexual relationships between aunts and uncles and their nephews and nieces unpalatable and capable of undermining the family unit. Nevertheless, and bearing in mind that the responses to the consultation document, ''Setting the Boundaries'', did not indicate a public appetite for widening the scope of the offence, I am not convinced that it is right to criminalise any further relationships. 
 However, I have to confess that, prompted by the amendments, we have given further anxious consideration to the matter. At the very least, hon. Members have exposed an anomaly. The question is whether we want to add more people to those who are not allowed to engage in adult sexual relationships with each other. Someone who does not want to widen the criminal law so that it scoops more adults into an offence when they have sexual relationships would be opposed to this amendment. However, someone who wants consistency between those of the same levels of consanguinity would be in favour of it. This is another matter that was raised here rather than in another place, and that was not identified by outside organisations. 
 I ask the Committee to reject the amendment. We could sweep more people into such offences for the sake of consistency by constantly widening the Bill's ambit, but we do not want to widen it too much. However, we also do not want the Bill to have inconsistencies. Therefore, I argue for the clause to remain as it is, but I also offer a commitment to hold further discussions by Report.

Humfrey Malins: When my family asks me later tonight what I have done today to serve my country, I shall be able to say that the Solicitor-General said that I exposed an anomaly. That is enough for anyone in one day. That the Minister said that she will take a further look at this is very satisfying. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 65 ordered to stand part of the Bill. 
 Clause 66 ordered to stand part of the Bill.

Clause 32 - Sexual activity with a person with a mental disorder or learning disability

Sandra Gidley: I beg to move amendment No. 189, in
clause 32, page 16, line 20, leave out 'refuse' and insert 'consent'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 190, in 
clause 32, page 16, line 25, leave out 'refuse' and insert 'consent'.
 Amendment No. 191, in 
clause 33, page 17, line 7, leave out 'refuse' and insert 'consent'.
 Amendment No. 192, in 
clause 33, page 17, line 12, leave out 'refuse' and insert 'consent'.
 Amendment No. 193, in 
clause 34, page 17, line 36, leave out 'refuse' and insert 'consent'.
 Amendment No. 194, in 
clause 34, page 17, line 41, leave out 'refuse' and insert 'consent'.
 Amendment No. 195, in 
clause 35, page 18, line 11, leave out 'refuse' and insert 'consent'.
 Amendment No. 196, in 
clause 35, page 18, line 16, leave out 'refuse' and insert 'consent'.

Sandra Gidley: These amendments have been tabled in a spirit of clarification. There are concerns among those who work with people with mental disorders or learning disabilities that the law uses different terminology for people who fall into those categories than it does in its discussion of rape in the early clauses. There is a strong feeling that there is not parity of esteem between the two phrases that are used. The rape clauses have the phrase ''B does not consent'', but these later clauses have,
''B is unable to refuse''.
 Part of the reason for tabling the amendments is to probe the Government's thinking. Why is the term ''unable to refuse'' used, when we could have a similarity throughout the Bill by using the term ''unable to consent''? This is a fundamental point. There are people who think that the Bill as currently drafted is discriminatory to some extent. I urge the Minister to try to explain, because we do not want to have to return to this matter on Report. 
 Another problem is that the Bill is unclear about when someone is able or unable to consent. We have talked about the capacity to consent being pivotal, so that is a considerable concern. We need further clarification. The proposed definition of ''unable to refuse'' is quite loosely worded and may lead to inappropriate prosecutions. The other concern is that the current definition risks people with learning disabilities being seen as never able to consent to sexual activity. I am sure that we all acknowledge that people with learning disabilities are perfectly capable of entering into a sexual relationship. The emphasis of the wording is completely wrong. 
 It is clear that there is an attempt to protect people with learning disabilities, and that is welcome. The amendment is intended to probe whether we have chosen the best way to do that. The new offences of rape, assault and sexual assault all use the term ''consent'' and it would be helpful if the Government stated clearly why that term was not used in the context of people with learning disabilities.

Harriet Harman: As the hon. Lady reminds us, clauses 32 to 35 are designed to protect the most vulnerable of those with mental disorders—those who lack the capacity to consent to sexual activity. Although many people with a mental disorder are
 fully able to consent to sexual activity, there are some, for example those with a profound learning disability, who are unable to give their informed consent. The law has hitherto failed to provide adequate redress for vulnerable people who have been targeted by predatory individuals. The clauses, together with clauses 36 to 46, are intended to remedy the problem by providing a strong legal framework to provide better protection. They are set out very clearly.
 Amendments Nos. 189 to 196 seek to change the wording in the clauses from ''unable to refuse'' to ''unable to consent'' to sexual touching. Capacity to consent is defined in clauses 32 to 35 as ''unable to refuse'' rather than ''unable to consent'' because if the latter were used, it would refer to the definition of consent in clause 75 and that would be circular because that clause refers to the capacity to choose. The idea is that everything is set out in these clauses so that when people read them they know what they mean, rather than having to go to clause 75. Anybody reading the clauses would know what they were aiming for and would not have to dive for different clauses in the Bill to read about consenting. 
 In any event, the only change would be presentational, because there is nothing between the two phrases in terms of meaning. We have chosen a different phrase so that the clauses are self-contained and do not get tangled up with the definition in clause 75. For those reasons, I resist the amendments.

Sandra Gidley: I think that I understand the Solicitor-General's points, but I suspect that there are many people who would prefer the Bill not to differentiate in that way. When researching the area, I came across a court case—I cannot remember the name of the judge—involving a young girl who had a learning disability. The ruling was, I think, that she was unable to refuse because of her animal instinct. My concern relates to ''unable to refuse'' and the animal instinct that was referred to by the judge—I do not agree with his views. I am concerned that there will be an opportunity for a judge in a similar situation to use the same excuse. If we changed the wording, that idea might not be used in future.

Harriet Harman: May I assist the hon. Lady? Under the definition used, that should not be a problem because the clause states that a person is:
''unable to refuse if—
(a) he lacks the capacity to choose . . . or
(b) he is unable to communicate''
 that choice. The phrase ''unable to refuse'' is therefore clearly defined, which should reassure the hon. Lady.

Sandra Gidley: That is reassuring. We do not want to repeat the mistakes of the past.
 I am still disappointed that the people to whom the clause will apply seem to be being treated in a way that diminishes the sentence. I know that that is not the intention, but that is how several people have interpreted the clause. However, I will not pursue the amendments any further at this stage. 
 Amendment, by leave, withdrawn.

Harriet Harman: I beg to move amendment No. 52, in
clause 32, page 16, line 20, leave out 'or learning disability'.

Roger Gale: With this it will be convenient to discuss Government amendments Nos. 53 to 55, 57 and 58, 60 to 65, 67 and 68, 70 to 79, 81 to 84, 86 to 90 and 104 to 106.

Harriet Harman: May I make it clear that the amendments in no way affect the scope of the protection afforded by the clauses to which they apply? We are talking about drafting and terminology, not substance. That is not to say that drafting and terminology are not important, but I want to reassure hon. Members on the nature of the amendments.
 The definition of a mental disorder contained in the Mental Health Act 1983, which has been adopted in the Bill, includes those with learning disabilities. I am aware that the Government amendments are controversial. The reason why we are tabling them is because if we include a separate reference, as has hitherto existed in the Bill, to learning disability—that is, to state, ''mental disorder or learning disability''—it could be taken to imply that learning disability is not a mental disorder, but something separate and not automatically included, for the purpose of this Bill or any other legislation, under the definition of mental disorder. That could lead to challenges to the legitimacy of detention of persons.

Sandra Gidley: I may not have been paying full attention, but am I to assume from what the Solicitor-General has just said that anybody with a learning disability is automatically regarded as having a mental disorder? I would not have thought that that was the case.

Harriet Harman: The hon. Lady has immediately hit on the controversial nature of the discussion. Elsewhere in legislation, mental disorder is defined as including learning disability. That is controversial, and discussions are going on in relation to other legislation about whether that should be changed.

Annette Brooke: I wonder whether the Solicitor-General can say how the Youth Justice and Criminal Evidence Act 1999, which uses the two terms, fits with what she is saying.

Harriet Harman: I will have to check that. The argument that I am making is that we do not want to include in the Bill something that appears to be inconsistent with how definitions are read in other legislation. There might be an anomaly elsewhere, but we do not necessarily want to add to that.
 If a person with a learning disability has committed an offence, provisions in the Mental Health Act 1983 enable detention in hospital as an alternative to imprisonment. That is because people with learning disabilities are included under the definition of those with a mental disorder. It is vital for the well-being of the individual and for the protection of the public at large that challenges to the interpretation of mental disorder as including those with a learning disability are not encouraged by leaving the issue unclear in the Bill. 
 On the other hand, I am aware that at least some of the learning disability charities object to the implication that learning disability is a mental disorder and I understand why. Since the days when the definition of mental disorder was generally understood to include learning disability, people, arguments and ideas have moved on. I sympathise with that view, but this Bill is not the right place in which to make the change because it might then affect other legislation. 
 A new approach to defining those with such conditions is being considered in the draft Mental Health Bill and the draft Mental Incapacity Bill. This is an important debate and terminology is important. I am not saying that the discussion should not take place here and that someone else should discuss it. It is important, but the change should be made in those Bills and if it is made, the Bill before us can be amended to ensure that it is consistent. I believe that the draft Mental Health Bill and the draft Mental Incapacity Bill are the right place for that discussion and it is taking place. We are trying to bring the Bill before us back to the status quo, while recognising that the status quo is under discussion. 
 In the meantime, the Government believe that it is right that the line taken in the Mental Health Act 1983 should be followed. I commend the amendments to the Committee for the reasons that I have given.

Sandra Gidley: I thank the Solicitor-General for her explanation, but I sometimes worry that in trying to tie up all the ends in a way that affects the community at large the matter may not have been thought through. Notwithstanding what she said about people with learning disabilities previously being able to be treated in hospital rather than in jail, there are some wider implications. I am reminded that many people have lobbied long and hard for some years to put into the public's perception the idea that people with learning disabilities do not necessarily have mental health problems. The two often go together, but not always and some people have learning disabilities with no mental health problem. There is a feeling that to go down the track that the Solicitor-General is advocating is to return to the days of describing people as being mentally defective. That is how strongly people feel about the matter.
 I take the Solicitor-General's point that the debate will take place next year, but we have the precedent of the Youth Justice and Criminal Evidence Act 1999. I should have thought it preferable at the moment to retain the existing term and to leave the arguments for another time. The amendments are attracting quite a lot of heat and it is important to ensure that other measures in the Bill are right. 
 There is a strong feeling among organisations such as Turning Point and Mencap about the concept of learning disability and it would be helpful to continue using that in legislation. To move in the direction that the Government are advocating is to take public perception back light years. I understand the technical argument that the Solicitor-General is making, but 
 there is a wider, societal argument that, sadly, the Government seem to be ignoring. 
 Amendment agreed to. 
 Amendment made: No. 53, in 
clause 32, page 16, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

Harriet Harman: I beg to move amendment No. 112, in
clause 32, page 16, line 28, leave out 'possible' and insert 'reasonably foreseeable'.

Roger Gale: With this we may discuss Government amendment No. 113.

Harriet Harman: Clauses 32 to 35 are designed to protect the most vulnerable among those with a mental disorder: those who lack the capacity to consent to sexual activity.
 Although many people with a mental disorder will be able to consent to such activity, there will be some, such as those with a profound learning disability, who will be unable to give their informed consent. Such vulnerable people have been specifically targeted for sexual abuse by predatory individuals, and the law has hitherto failed to provide adequate redress. The clauses, together with clauses 36 to 46, are intended to remedy the situation by providing a strong legal framework to provide better protection. 
 Government amendments Nos. 112 and 113 seek to refine the definition of a lack of capacity to choose in the clauses by replacing the phrase, 
''sufficient understanding of the . . . possible consequences of the sexual activity''
 with 
''sufficient understanding of the . . . reasonably foreseeable consequences of the sexual activity''.
 That was proposed in another place. As a result of that debate, we undertook to consider the definition further. The amendments are supported by many of the organisations working to assist people with learning disabilities, and we have drawn on their expertise and on that of learning-disabled individuals who have raised the matter with us, in concluding that the amendments are the right way forward. We have accepted the concerns of those organisations that 
''a sufficient understanding of the . . . possible consequences''
 was too broadly defined and might require a greater understanding of the consequences of sexual activity—all the possible consequences—than might be found in many of the population at large. 
 We suggest that it is reasonable for the definition to cover understanding of the ''reasonably foreseeable'' consequences, such as that sexual intercourse could lead to pregnancy or carry certain health risks, but not of the emotional or all the other possible consequences of sexual activity, which, after all, many young adults without a mental disorder or learning disability might not understand. It is essential that the balance between protecting the vulnerable against abuse and respecting their human rights should be achieved. We believe that that more limited test brings us closer to that goal. 
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Humfrey Malins: I wonder whether the Solicitor-General might consider—not now but before Report—whether there are any circumstances under the clause, to which subsection (4) would not apply, in which there could be a not-so-serious offence for which magistrates' powers of sentencing would be sufficient. There is no provision under subsection (3) for magistrates to have sentencing powers, but there might be the occasional case in which the magistrates' powers would be sufficient, so the matter need not be made indictable. I hope that the Solicitor-General will allow that point to be absorbed and respond to it in due course, perhaps by letter.

Harriet Harman: I think that I can respond to the point by reference to amendments Nos. 114 and 115, which make the mode of trial either way. Perhaps the hon. Gentleman can support the arguments in those amendments.
Mr. Malins indicated assent.
 Question put and agreed to. 
 Clause 32, as amended, ordered to stand part of the Bill.

Clause 33 - Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity

Amendments made: No. 54, in 
clause 33, page 17, line 7, leave out 'or learning disability'. 
 No. 55, in 
 clause 33, page 17, line 10, leave out 'or learning disability'.
 No. 113, in 
clause 33, page 17, line 15, leave out 'possible' and insert 'reasonably foreseeable'.—[The Solicitor-General.]
 Clause 33, as amended, ordered to stand part of the Bill.

Clause 34 - Engaging in sexual activity in the presence of a person with a mental disorder or learning disability

Amendments made: No. 56, in 
clause 34, page 17, line 33, leave out from 'it' to 'knowing' in line 34 and insert— 
 '(i) when another person (B) is present or is in a place from which A can be observed, and 
 (ii) '.
 No. 57, in 
clause 34, page 17, line 36, leave out 'or learning disability'.
 No. 58, in 
clause 34, page 17, line 39, leave out 'or learning disability'.—[The Solicitor-General.]

Harriet Harman: I beg to move amendment No. 114, in
clause 34, page 18, line 1, after 'liable', insert '— 
 (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; 
 (b) '.

Roger Gale: With this it will be convenient to take Government amendment No. 115.

Harriet Harman: I might have misheard the hon. Member for Woking earlier. Clause 32 involves penetration, so it would not necessarily be appropriate for the offence to be triable either way.
 We are now considering amendments Nos. 114 and 115. They would address a disparity between clause 34, which covers engaging in sexual activity in the presence of a person with a mental disorder, and clause 35, which covers causing a person with a mental disorder to watch a sexual act and the equivalent child sex offences under clauses 12 and 13. The offences under clauses 12 and 13 are triable either way, whereas those under clauses 34 and 35 are triable on indictment only. We believe that the same flexibility about mode of trial should be applied to each of the clauses. 
 The offences potentially catch a wide range of behaviour. For example, clause 34 could catch someone engaging in sado-masochistic sex in the presence of a mentally disordered adult who lacks the capacity to consent. Clause 35 could cover someone forcing such a person to look at a video of a person engaged in a sexual activity with an animal. Such cases are likely to need to be dealt with at the Crown court. However, the sexual activity in the presence of the person or depicted in an image may be a couple sexually caressing each other. Although the deviancy and potential harm is in the fact that this activity is shown to the person for the defendant's own sexual gratification, behaviour at that end of the spectrum might be capable of being dealt with at the magistrates court. We believe therefore that we have got it right in the child sex offences clauses and that the same flexibility about the mode of trial should be extended to clauses 34 and 35. 
 Amendment agreed to. 
 Clause 34, as amended, ordered to stand part of the Bill.

Clause 35 - Causing a person with a mental disorder or learning disability to watch a sexual act

Amendments made: No. 59, in 
clause 35, page 18, line 8, leave out 'a photograph or pseudo-photograph' and insert 'an image'.
 No. 60, in 
clause 35, page 18, line 11, leave out 'or learning disability'.
 No. 61, in 
clause 35, page 18, line 14, leave out 'or learning disability'.
 No. 115, in 
clause 35, page 18, line 21, after 'liable', insert '— 
 (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; 
 (b) '—[The Solicitor-General.] 
Clause 35, as amended, ordered to stand part of the Bill.

Clause 36 - Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability

Amendments made: No. 62, in 
clause 36, page 18, line 32, leave out 'or learning disability'.
 No. 63, in 
clause 36, page 18, line 34, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 36, as amended, ordered to stand part of the Bill.

Clause 37 - Causing a person with a mental disorder or learning disability to engage in or agree to sexual activity by inducement, threat or deception

Amendments made: No. 64, in 
clause 37, page 19, line 8, leave out 'or learning disability'.
 No. 65, in 
clause 37, page 19, line 10, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 37, as amended, ordered to stand part of the Bill.

Clause 38 - Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability

Amendments made: No. 66, in 
clause 38, page 19, line 26, leave out from 'it' to 'knowing' in line 27 and insert— 
 '(i) when another person (B) is present or is in a place from which A can be observed, and 
 (ii) '.
 No. 67, in 
clause 38, page 19, line 32, leave out 'or learning disability'.
 No. 68, in 
clause 38, page 19, line 34, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 38, as amended, ordered to stand part of the Bill.

Clause 39 - Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception

Amendments made: 
 No. 69, in 
clause 39, page 20, line 1, leave out 'a photograph or pseudophotograph' and insert 'an image'.
 No. 70, in 
clause 39, page 20, line 7, leave out 'or learning disability'.
 No. 71, in 
clause 39, page 20, line 9, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 39, as amended, ordered to stand part of the Bill.

Clause 40 - Care workers: sexual activity with a person with a mental disorder or learning disability

Amendments made: 
 No. 72, in 
clause 40, page 20, line 21, leave out 'or learning disability'.
 No. 73, in 
clause 40, page 20, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

Sandra Gidley: I beg to move amendment No. 185, in
clause 40, page 20, line 24, at end insert— 
 '( ) A person is not guilty of an offence under this section if— 
 (a) the touching was for the purpose of sex education, and 
 (b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and 
 (c) there is no alternative means of delivering this sex education because of the nature of B's disability, and 
 (d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and 
 (e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 146, in 
clause 40, page 20, line 44, at end insert— 
 '(5) A person is not guilty of an offence under this section if— 
 (a) the touching was for the purpose of sex education; 
 (b) B is a person with profound or multiple disabilities such that he requires intensive and intimate support to understand or receive sex education; 
 (c) there is no alternative means of delivering this sex education because of B's disability and 
 (d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.
 Amendment No. 186, in 
clause 41, page 21, line 9, at end insert— 
 '( ) A person is not guilty of an offence under this section if: 
 (a) A's action was for the purpose of sex education and, 
 (b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and 
 (c) there is no alternative means of delivering this sex education because of the nature of B's disability, and 
 (d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and 
 (e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'. 
Amendment No. 147, in 
clause 41, page 21, line 30, at end insert— 
 '(5) A person is not guilty of an offence under this section if— 
 (a) the touching was for the purpose of sex education; 
 (b) B is a person with profound or multiple disabilities such that he requires intensive or intimate support to understand and receive sex education; 
 (c) there is no alternative means of delivering this sex education because of B's disability and 
 (d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.

Sandra Gidley: I rise to speak to amendment No. 185. Amendment No. 186 is in a similar vein and amendments Nos. 146 and 147 have been tabled by Conservative Members to achieve much the same end in a slightly different way. This subject was raised briefly on Second Reading. The problem is that there are some occasions, most notably in the teaching of deaf-blind people, where there is no other way to provide sex education than by the use of touch. The concerns are that the Bill as drafted will effectively criminalise workers in that sector.
 The amendment seeks to introduce a very limited exception to the provisions. The last thing that anyone on the Liberal Democrat Benches wants to do in introducing such an amendment is to create a loophole that others can exploit. The people in question are generally the congenitally deaf-blind: people born without sight or hearing. Many in that category never acquire formal language skills and their only way of learning about the world is through touch. 
 We might ask why those people need sex education and wonder whether we can leave it to nature. The sad reality is that some deaf-blind people, as a natural reaction, might want to masturbate but do not know that what they are doing needs to be done in private and not when others are present. I am told that there are ways of getting this information over by the use of touch but that will happen fairly rarely. There are also occasions when things are not quite so natural. People may insert objects inappropriately. I read of a case in which a young woman was using soaps and deodorants inappropriately. Clearly, there is a need in such a case to do something to intervene to prevent further self-harm. That activity has to be replaced by something less damaging to the individual. 
 In drafting the amendment, I have made it very clear that the only purpose of such a provision could be for education. The person receiving the treatment must fall under the definition of having profound and multiple disabilities. To try to add further safeguards, we have said that there must be some element of protecting the person from abuse or harm. If someone is not familiar with the ways of the world and someone inappropriate is touching them in a certain way, whether it be a family member or whoever, somehow, that information also has to be communicated—that such behaviour is not allowed with that particular person. We are clear that there can be no other way of delivering that information. If there were another way to deliver that training or education, that would have to be tried first. 
 In an attempt to close all the loopholes, it was thought that it should not be just one person making the decision to provide that training, because a person 
 could say, ''That is a job that I might quite like'', act accordingly, and perhaps try to deliver more training and education than was necessary. As a final safeguard, we included the provision that the decision to provide that sex education must be the decision of the multidisciplinary team. I toyed quite seriously with the idea that such education should be supervised but I was less easy with that. Just because someone cannot see or hear, it does not mean that things should not be carried out in as private a venue as possible. 
 That is the thinking behind the amendments. I hope that, if the Government do not accept them, I will at least be given some assurance that that sort of necessary education will be allowed to continue in some way, and I would like to hear how that will be achieved.

Humfrey Malins: I am grateful to Sense for the amendments that my hon. Friend the Member for Beaconsfield and I tabled. I have listened carefully to what the hon. Lady has said, and feel that it is important that the amendments have been tabled, so that the Government are aware of the issue and can respond as fully as possible. I do not think that I need say any more than that.

Harriet Harman: Amendments Nos. 146 and 147 and 185 and 186 seek to provide a defence for care workers who provide hands-on sex education, such as teaching a person to masturbate or getting them to masturbate themselves, in the strictly limited circumstances that the hon. Lady laid out—that is, where there is no alternative way that sex education can be provided. We understand the point of view of care workers who believe that a hands-on approach to sex education is an important part of the care that they provide.
 We have considered the issues surrounding a sex-education exception carefully, and took a wide range of soundings from relevant organisations both when the Bill passed through another place and when considering this proposal. We have not found any consensus as to the legitimacy of such forms of sex education among the learning disability charities, even in the more limited circumstances proposed in the amendments. Some of them believe that it is never appropriate. This is a contentious subject.

Sandra Gidley: I was talking about a very specific group of people. The charity Sense was mentioned; it is the group that is most closely involved. I argue that the other agencies with which the Solicitor-General consulted may not have direct experience of the problem. Can she elaborate on who was against the amendments, what their reasons were, and how they would provide the necessary help?

Harriet Harman: I understand that Respond and Voice UK, which are concerned with and advocates for that client group, are worried about whether, and in what circumstances, such education would be appropriate. It is because of the controversy surrounding the issue that there are no national guidelines.
 Contrary to what may be implied in the amendments, there are no recognised qualifications 
 to cover such forms of sex education. People who are vulnerable by virtue of a mental disorder are targeted for sexual abuse by predatory individuals. Although the overwhelming majority of care workers are conscientious, a small minority have used their positions of trust to take advantage of the vulnerability of those in their care. We must not create a loophole through which the unscrupulous, whose behaviour was abusive, could claim to be providing sex education.

Sandra Gidley: As I explained earlier, we have tried hard to avoid creating that loophole. Will the Solicitor-General explain how it might work?

Harriet Harman: I understand that there is not yet consensus around the amendment and having a legislative exemption in the Bill. Some would argue that that is properly a matter for prosecutorial discretion. I am not convinced that we have consensus or, if we do, whether the legislative answer is watertight enough, so that we do not undermine the protection that we are seeking to provide. For those reasons, I ask the Committee to resist the amendments.
 My hon. Friend the Under-Secretary met Sense last night to discuss the relevant issues. Perhaps we can—as ever—find consensus, so that we all know what we are talking about, and all those involved in this important, difficult area of work are agreed about what is and is not appropriate and what is and is not necessary. If we can achieve consensus, or at least identify it, and identify the legislative amendment that would give effect to that consensus in the Bill, we will consider tabling it. We are not unsympathetic to the point that is being raised but we must be aware of the difficulties in this sector. Frankly, we must be guided by those involved on the front line in this difficult sector—the parents and care workers. 
 I ask the hon. Members for Romsey and for Woking not to press the amendments. This is another part of the Bill on which discussion will be ongoing. If we do not find consensus, or if we find consensus but no legislative expression for it in which we feel confident, we shall not be able to table amendments on Report. We shall certainly try to find consensus. My hon. Friend the Under-Secretary is already engaging in that process.

Sandra Gidley: I thank the Solicitor-General for her response. I am still unconvinced that there are loopholes. I have yet to hear how such a loophole would be exploited. However, I take the point that there is no consensus in the sector. Despite what I have said, I, too, am concerned that we get it right and do not provide loopholes. I intend to discuss the matter with Respond and Voice UK, with a view, if the Government do not table further amendments on Report, to having another go at that stage. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendments made: No. 74, in 
clause 40, page 20, line 26, leave out 'or learning disability'.
 No. 75, in 
clause 40, page 20, line 28, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 40, as amended, ordered to stand part of the Bill.

Clause 41 - Care workers: causing or inciting sexual activity

Amendments made: No. 76, in 
clause 41, page 21, line 6, leave out 'or learning disability'.
 No. 77, in 
clause 41, page 21, line 8, leave out 'or learning disability'.
 No. 78, in 
clause 41, page 21, line 11, leave out 'or learning disability'.
 No. 79, in 
clause 41, page 21, line 13, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 41, as amended, ordered to stand part of the Bill.

Clause 42 - Care workers: sexual activity in the presence of a person with a mental disorder or learning disability

Amendments made: No. 80, in 
clause 42, page 21, line 36, leave out from 'it' to 'knowing' in line 37 and insert— 
 '(i) when another person (B) is present or is in a place from which A can be observed, and 
 (ii) '.
 No. 81, in 
clause 42, page 21, line 39, leave out 'or learning disability'.
 No. 82, in 
clause 42, page 21, line 41, leave out 'or learning disability'.
 No. 83, in 
clause 42, page 21, line 44, leave out 'or learning disability'.
 No. 84, in 
clause 42, page 21, line 46, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 42, as amended, ordered to stand part of the Bill.

Clause 43 - Care workers: causing a person with a mental disorder or learning disability to watch a  sexual act

Amendments made: No. 85, in 
clause 43, page 22, line 13, leave out 'a photograph or pseudo-photograph' and insert 'an image'.
 No. 86, in 
clause 43, page 22, line 16, leave out 'or learning disability'.
 No. 87, in 
clause 43, page 22, line 18, leave out 'or learning disability'.
 No. 88, in 
clause 43, page 22, line 21, leave out 'or learning disability'.
 No. 89, in 
clause 43, page 22, line 23, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 43, as amended, ordered to stand part of the Bill.

Clause 44 - Care workers: interpretation

Amendment made: No. 90, in 
clause 44, page 23, line 6, leave out 'or learning disability'.—[The Solicitor-General.]
 Clause 44, as amended, ordered to stand part of the Bill. 
 Clauses 45 and 46 ordered to stand part of the Bill. 
 Further consideration adjourned—[Mr. Heppell.] 
 Adjourned accordingly at fourteen minutes past Five o'clock till Thursday 18 September at ten minutes past Nine o'clock.